September 2007 - Call Compliance News

Federal

FCC
The FCC has requested comments regarding the paperwork and compliance burden imposed by its rules implementing the Telephone Consumer Protection Act.  Comments are due on or before October 9, 2007.

The FCC has made the same request with regard to its regulations implementing CAN-SPAM and the forms are easiest to accept complaints under the TCPA and CAN-SPAM regulations.

State

California
A California appellate court has ruled that an insurance company did not violate the TCPA when it sent faxes to a business which had purchased health insurance from the company in the past.  The court ruled that the Telephone Consumer Protection Act allowed the calls and the calls did not violate state consumer protection laws either.

The California Senate has passed a bill (AB 779) which would require notice to customers when credit card or debit card information is lost.  It also requires retailers to assume all costs of consumer notification and card replacement.  The bill now goes back to the state assembly for ratification.

A California federal court has refused to hear a TCPA case holding that it would properly be heard only in state court.  (Boydston v. Asset Acceptance, LLC).  The court also ruled that there is no private cause of action under the TCPA for technical procedural violations.  Most private plaintiffs include numerous allegations of such procedural violations to increase the worth of their claims.

Colorado
An appellate court has ruled that a residential telephone subscriber who advertised and used the number for both personal and business reasons could sign onto Colorado’s “do-not-call” list.  Holcomb v. Steven D. Smith, 2007 Colorado App. Lexis 1751 (September 6, 2007).  This case is quite problematic because the protections of “do-not-call” lists are based on protection of privacy interests.  Businesses do not have privacy interests and application of a “do-not-call” list to a business likely would cause a question to arise regarding the requirement’s constitutionality. Courts do not apply the protections of the Constitution based on labels (e.g. “residential” or “business” telephone line) rather on the actual use or speech involved (i.e. business speech is involved here, not residential privacy).

Illinois
An Illinois appellate court overturned a trial court which had previously dismissed a TCPA claim by a mortgage company against a bank.  The court ruled that an Illinois law required TCPA claims to be heard in state court.

 
Indiana
The Seventh Circuit Court of Appeals has ruled that a federal court should not have heard a challenge to the State of Indiana’s rules on prerecorded telephone calls.  The case will be heard in state court, for it seems unlikely the plaintiff will be successful in claiming that state law should be preempted by federal restrictions allowing some prerecorded calls.

Louisiana
A Louisiana appellate court has ruled that a plaintiff could sue a sender of unsolicited telephone facsimile messages in a class action.  The appellate court ruled that even if the plaintiff had an established business relationship with the sender, the class action still could be maintained.

Massachusetts
Massachusetts House Bill 3846, which would have required written consumer consent for all telephone transactions, died in committee and was not voted on by the full state legislature.

Ohio
The Ohio Supreme Court has ruled that an attorney who received an unsolicited fax could not maintain a cause of action for failure to include identifying information or other violations of regulation other than receipt of the fax itself.  Often plaintiffs attempt to add allegations of these sorts of violations to TCPA claims multiplying by many times the amount of damages provided by Congress ($500 per fax).

New York
A New York federal court has dismissed a class action filed under the TCPA for unsolicited faxes ruling that a claim needed to be filed in state court.

Pennsylvania
A Pennsylvania court has allowed a TCPA case alleging illegal prerecorded messages to continue against an insurance company.  The insurance company argued that the calls were exempt from the TCPA because they conducted a survey on behalf of a tax exempt organization.  The court found that the call actually was intended to result in the sale of goods or services.  The court found the exemption for calls made by or on behalf of a tax exempt nonprofit organization applied only to calls made to further the objectives of a tax exempt nonprofit organization.  This is one of the first cases to affirm the FCC’s previous statements that “surveys” which are actually intended to generate sales are not exempt from the TCPA rules.  While actual surveys likely would be exempt, a “survey” intended to generate sales or leads is not “unsolicited advertisement” and is subject to the prerecorded calling rules.  Those calls would only be allowed with an established business relationship or other exemption.

A bill has been introduced in the Pennsylvania House (HB 1234) which would change the state “do-not-call” list requirement to adopt the federal five year expiration period for “do-not-call” requests.  The bill would also allow businesses to remove numbers from the list if the number is no longer valid for that residential or wireless telephone subscriber.  The FTC and FCC likely would adopt the same “scrubbing” procedures for the national list, i.e. removing numbers from the list when they have been disconnected or transferred to another provider, although some analysis of the list has shown errors in this respect.

Congressman Mike Doyle is going to introduce legislation to the U.S. Congress removing the five year expiration period for numbers on the national “do-not-call” list.  The bill has not yet been introduced but the FTC has issued guidance supporting the current 5 year expiration period. This bill could get coverage in an election year and you likely should contact your representative to oppose this measure if your business is affected by the national do not call list.

Virginia
A Virginia court has ruled that an insurance company was required to provide coverage for a business facing a class action for sending unsolicited faxes.
Other

India
The country of India has implemented a “do-not-call” directive creating a national “do-not-call” database.